REVIEW FROM COURT OF APPEALS CASE NO. 2016-CA-001771-MR
PULASKI CIRCUIT COURT NO. 13-CI-00246
COUNSEL FOR APPELLANT: Thomas E. Carroll Lance Wilson Turner
CARROLL 86 TURNER, PSC
COUNSEL FOR APPELLEE: John F. Kelley, Jr. WILLIAM 86 TOWE LAW
statute, a tort claimant's right of action against a
tortfeasor generally survives the latter's death.
411.140. The issue we resolve in this case is whether the
Court of Appeals erred in affirming the Pulaski Circuit
Court's dismissal of Steve Gregory's claim against
the heirs of Harold Hardgrove (the "Decedent")
seeking to enforce a judgment lien against real property
owned by the Decedent at his death. The Court of Appeals
affirmed the trial court's dismissal of Gregory's
complaint seeking to intervene in a foreclosure action filed
by Cumberland Valley National Bank and Trust Company
("CVNB"). In its foreclosure action, CVNB sought to
enforce its mortgages against the Decedent's real
property. The trial court held that Gregory failed to state a
claim for which relief could be granted because at the time
of death, the Decedent's real property passed to his
heirs at law immediately, subject only to the claims of
"creditors." Finding that Gregory's pending
tort claim against the Decedent did not qualify him as a
"creditor," the trial court dismissed his claim.
The Court of Appeals affirmed. Upon review, we conclude
Gregory's tort claim, which accrued prior to the date of
death, made Gregory a creditor of Hardgrove and now his
Estate. Accordingly, we reverse and remand.
Factual and Procedural Background.
fall of 2008, Gregory was injured while attending races at
Lake Cumberland Speedway, owned by Hardgrove. Gregory filed a
civil action against Hardgrove in March 2009. In August 2009,
Hardgrove died intestate, survived by his children and heirs
at law, Brandon Hardgrove and Casey Hardgrove. Brandon
Hardgrove was appointed Administrator by the Pulaski District
Court on October 28, 2009. Gregory timely revived his action
against Hardgrove's Estate. KRS 395.278. The record also
indicates that Gregory filed a proof of claim against the
Estate pursuant to KRS 396.011, 396.015. In December 2013,
the Pulaski Circuit Court, First Division, entered a judgment
in favor of Gregory against the Estate in the amount of $172,
780.16, and interest at 12% per annum from and after the date
time of the Decedent's death, as listed on the
Estate's Inventory and Appraisement, he owned three
parcels of real property, with an estimated value of $310,
In February 2014, Gregory filed a judgment lien against the
separate action filed in February 2013,  CVNB filed a
foreclosure action with respect to the Decedent's real
property to collect the balance due on promissory notes
executed in 2002 and 2008. These loans were secured by
mortgages filed in the Pulaski County Clerk's office.
Named defendants were the Hardgrove heirs; state and local
governments; various lessees of portions of the real
property; other interested parties with respect to unpaid
real estate taxes; and Kathy Owens, another judgment
creditor. Gregory was not named. In April 2014, Gregory filed
a motion to file an intervening complaint in CVNB's
foreclosure action on the property owned by Harold Hardgrove
at the time of his death. The trial court granted the motion.
In his complaint, Gregory raised the existence of his
judgment against the Estate, and further alleged that the
Estate's personal property was insufficient to satisfy
his judgment. As a result, Gregory requested that the real
property be sold to satisfy his judgment and claim against
later filed a motion to amend his intervening complaint to
include the Decedent, Brandon, as Administrator of the
Estate, and Hardgrove's heirs, Brandon and
Casey. The trial court granted the motion.
Subsequently, however, the trial court dismissed
Gregory's claim and denied his Motion to Alter, Amend, or
Vacate, holding that since Gregory's claims were
"inchoate" at the time of the Decedent's death
and the real property passed to the heirs upon death subject
only to liens then existing, Gregory's postmortem
judgment and judgment lien against the Estate could not
attach to the real property. As a result, the trial court
held that the Decedent's real property, through
intestacy, passed free and clear of Gregory's claim. The
trial court made its Order final and appealable.
54. Gregory appealed, and the Court of Appeals affirmed. We
granted discretionary review. Before us, Gregory argues that
he has a claim against the property which descended to the
Decedent's heirs, and as to which KRS 395.510 and 395.515
provide him a remedy. We agree.
Standard of Review.
a motion to dismiss for failure to state a claim upon which
relief may be granted is a pure question of law, a reviewing
court owes no deference to a trial court's determination;
instead, an appellate court reviews the issue de novo."
Fox. v. Grayson, 317 S.W.3d 1, 7 (Ky. 2010).